Why the wait? Challenging the constitutionality of the right of appearance requirement

September 1st, 2023
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It is an undisputed norm that any law that is inconsistent with the Constitution is invalid (s 2 of the Constitution). This is so because the Constitution is, according to the preamble, the supreme law of South Africa. Against this background, s 25(3)(a)(i) of the Legal Practice Act 28 of 2014 (LPA), in my opinion, is impugned on constitutional grounds. The purpose herein is to establish the extent to which the impugned provision does not fulfil the constitutional obligations.

Understanding s 25(3)(a)(i) of the LPA

The impugned provision provides a High Court registrar with authority to issue a right of appearance (ROA) certificate to attorneys who wish to appear in the High Court, Supreme Court of Appeal, or the Constitutional Court (CC). The authority herein is not faulted. However, the gist of the constitutional threat is the requirement that an attorney must have been practicing as such for a continuous period of not less than three years.

Background

It is understood that the impugned provision is the replacement of s 3(2) read with s 4(1)(b) and (2) of the now repealed Right of Appearance in Courts Act 62 of 1995. The repealed provision had also provided the registrar with the authority to issue the right of appearance subject to a certificate confirming that the attorney had been in practice for a continuous period of not less than three years.

Notwithstanding the aforementioned similarities, the impugned provision is distinguishable in material respects. This is so on the basis that the same requirement existed as an ‘alternative’ under the repealed provision. As a result, attorneys who satisfied other requirements in s 4(1) were still issued with the right of appearance despite not satisfying the three-year requirement.

Freedom of trade, occupation, and profession

The contended constitutional concern originates from s 22 of the Constitution (infringed provision). It is common cause that the infringed provision provides every citizen with a right to freely choose their trade, occupation, or profession. The provision further includes a special limitation clause (I Currie and J De Waal The Bill of Rights Handbook 6ed (Cape Town: Juta 2013) at 174). In this regard the legislature is vested with power to enact regulatory provisions to oversee the chosen practice. The right under discussion is not absolute (Currie and De Waal (op cit) at 150). This is so because ss 7(3) and 36(1) of the Constitution authorise the limitation of rights in the Bill of Rights. Hence the infringed provision is generally not exempted from the limitation analysis.

Application of s 36(1) of the Constitution

The difficulty with applying the s 36(1) analysis in the instance of rights, which have their own limitation clauses, had been acknowledged (Currie and De Waal (op cit) at 152). This is because these rights are generally armed with their own limitation criteria. However, the present enquiry is distinguishable. The CC, through Ngcobo J, has provided notable guidelines in this regard (Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC)).

The court was called on to rule on the constitutionality of s 22C(1)(a) of the Medicines and Related Substances Act 101 of 1965. The test to resolve the difficulty was held to be whether the impugned law, viewed objectively, would negatively affect the ‘choice’ of a trade, occupation or profession (para 68). It is an affirmative outcome that will drive the enquiry to s 36(1) of the Constitution. Although the court unanimously found in the negative, the facts warranted such conclusion. This is so because s 22C(1)(a) merely provided permissible regulations for the practice (para 72). As a result, the court applied the rationality test as opposed to the reasonableness test in s 36(1) of the Constitution.

On the contrary, the present scenario constitutes, on objective grounds, an impairment on the ‘choice’ to enter and to continue with the attorneys’ profession. Therefore, it is fitting to invoke s 36(1) of the Constitution.

Whether s 25(3)(a)(i) of the LPA is a law of general application?

It is common cause that the impugned provision is a legislative provision. This is deemed to be ‘law’ for the purposes of the s 36(1) analysis (Currie and De Waal (op cit) at 156). The second part of the inquiry deals with the character of the impugned law. In this part, the focal question is whether the law applies impersonally, equally and is not arbitrary (Currie and De Waal (op cit)). Henceforth, s 25(3)(a)(i) would be of general application if this question is answered in the affirmative.

It is noted that the LPA recognises both attorneys and advocates as legal practitioners (s 1). This was seemingly done in pursuit of an integrated legal profession. One notable sign of integration permits advocates to source instructions directly from the public (s 34(2)(a)(ii)). However, the import of the impugned provision does not extend to newly admitted advocates who are able to immediately acquire the ROA on admission. Against this background, the impugned provision does not apply equally to legal practitioners.

The differentiation emanates from the fact that the character of the impugned provision singles out newly admitted attorneys. An example of this was the subject of adjudication in President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC). Albeit in dissent, Mokgoro J found that the law, which targets specific individuals, cannot be of general application (para 102). The dissent is nonetheless significant because Mokgoro J merely used a different vehicle to arrive at the same destination as Goldstone J who penned the majority judgment. The majority also did not reject this reasoning, thus making it a crucial dictum. Therefore, the differentiation suffers from the undesired form of arbitrariness (Currie and De Waal (op cit) at 159 – 160).

The arbitrariness arises from the fact that similarly placed persons (or supposedly) are treated in a substantially different manner. Treatment of this nature was accordingly rejected in S v Makwanyane and Another 1995 (3) SA 391 (CC). The rejection is premised on the basis that an arbitrary action is incapable of providing rational reasons for unequal treatment of similarly placed persons (para 156). The same is true with the application of s 25(3)(a)(i) of the LPA. Consequently, the impugned provision is not of general application.

From the foregoing, the bus ought to have been parked already. Be that as it may, and for academic purposes, the inquiry will nonetheless proceed to apply the s 36(1) analysis. This is also necessary because the courts may, notwithstanding the reasons, proceed to the same destination.

Reasonableness and justifiability

The limitation of constitutional rights cannot be based on flimsy reasons. The reasons must conform to a democratic society based on human dignity, equality, and freedom (s 36(1) of the Constitution). The analysis was first adopted in Makwanyane under s 33(1) of the interim Constitution and was subsequently included in s 36(1) of the final Constitution. The absence of persuasive reasons will ultimately be the collapse of reasonableness and justifiability of the limitation.

The nature of the right (s 36(1)(a)): The focus turns to the heart of s 22 of the Constitution and its importance within the overall Constitutional scheme, because rights do not weigh equally. The nature of the right under discussion is, for present purposes, informed by the significance of human dignity. This view was confirmed in Affordable Medicines (para 59). The effect is that s 22 of the Constitution is elevated to a higher degree (see Makwanyane).

The importance of the purpose of the limitation (s 36(1)(b)): The contravention caused by the impugned provision to the Constitutional right(s) must serve a legitimate purpose. The legitimacy is based on whether a purpose can be located within constitutional aspirations of democracy, human dignity, equality, and freedom. The impugned provision has been in operation for more than four years. However, in the absence of evidence to the contrary, the purpose remains vague. There have, however, been suggestions, albeit with doubt, that purport to link the limitation to the protection of society from possibly ‘incompetent attorneys’ (Prof Fareed Moosa ‘Challenges faced by attorneys – rights to appear in superior courts’ 2022 (Dec) De Rebus 11). It is submitted that public interests are of paramount importance in any profession. Therefore, subject to reservations hereunder, the limitation is presumed to conform to a legitimate legislative purpose (see Rafoneke and Another v Minister of Justice and Correctional Services and Others 2022 (6) SA 27 (CC) at para 82).

The nature and extent of the limitation (s 36(1)(c)): The magnitude of the limitation becomes the subject of scrutiny. The court in S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC) has warned against the use of a ‘sledgehammer to be used to crack a nut’ (para 34). The essence herein is that the effect of the limitation should not exceed what is reasonably necessary in pursuit of a purpose.

To the extent that human dignity is also compromised, the encroachment is severe in nature. The impairment further borders on the clients’ right to choose a legal representative of their choice (s 35(2)(b) of the Constitution). This is so because clients who prefer newly admitted attorneys may be inclined to engage advocates who are immediately issued with the right of appearance. Hence the impugned provision becomes a prima facie hindrance to access to justice. The right to equality is also not spared from the sledgehammer. This is due to the unfair differentiation among newly admitted legal practitioners.

Furthermore, the encroachment has the effect of placing the enjoyment of the ‘choice’ in abeyance pending the conclusion of three years. This is despite absence of evidence justifying the extent of limitation. Hence the extensive nature of the limitation on s 22 of the Constitution is disproportionate to any presumed benefit.

The relation between the limitation and its purpose (s 36(1)(d)): The test aims to establish the nexus or the absence thereof between the infringing law and its purpose. For present purposes, the nexus is affected by the following factors: There is no evidence that newly admitted attorneys, but not advocates, are unable to represent their clients accordingly in superior courts nor can it be reasonably said that putting the ROA in abeyance for three years will equip these attorneys. This is so, Prof Moosa submitted, because there is no mandatory training or requirement(s) to be undertaken during the three years (Moosa (op cit) at 12). For all possibilities, it could be three wasted years. Therefore, the s 25(3)(a)(i) requirement is misplaced in relation to its supposed purpose.

Less restrictive means to achieve the purpose (s 36(1)(e)): This aspect is undertaken on the assumption that the purpose is worthwhile in which case the infringing law should be replaced with less limiting measures. Despite an unfounded assumption that newly admitted attorneys are unskilled to appear in superior courts, it is submitted that a more extensive Practical Vocational Training (PVT) would have been warranted as opposed to three, possibly empty, years. This is so because the three-year period is unregulated. As a cure, in addition to board examinations and Practical Legal Training, a structured advocacy training could have been included within the period of PVT. It is also not a mitigating factor that s 25(3)(a)(i) further provides for the possibility of three years being reduced. The impairment on access to justice, ‘choice’ to enter and to continue as an attorney would have prevailed already and the inroads would have been far reaching, thus rendering the possible reduction ineffective.

Conclusion

From the foregoing, s 25(3)(a)(i) cannot be located within the constitutional scheme based on human dignity, equality, and freedom. This is unfortunate in the light of the LPA’s objectives to promote transformation, access to legal services, equality and to remove unnecessary barriers (s 3 of the LPA). It is noted that the infringed provision was meant to eliminate the restriction on employment caused by past laws. There is, however, prima facie evidence that the impugned provision is directly opposite to these objectives. It is inconceivable that the legislature would have intended such a catastrophe to prevail in a constitutional democracy. Given the impact on an integral part of the attorneys’ profession, it is rather surprising that the issue has not been the subject of adjudication, nor has it generated enough academic scrutiny.

Blessing Sicelo Makhathini LLB LLM (UKZN) is a legal practitioner in Ermelo. He writes in his personal capacity.

This article was first published in De Rebus in 2023 (Sep) DR 20.

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